Armed Forces (Special Powers) Act

Armed Forces (Special Powers) Act
Enacted by Parliament of India
Status: In force

Armed Forces (Special Powers) Acts (AFSPA), are Acts of the Parliament of India that grant special powers to the Indian Armed Forces in what each act terms "disturbed areas".[1] According to The Disturbed Areas (Special Courts) Act, 1976 once declared ‘disturbed’, the area has to maintain status quo for a minimum of 3 months. One such act passed on September 11, 1958 was applicable to the Naga Hills, then part of Assam. In the following decades it spread, one by one, to the other Seven Sister States in India's northeast.[2] Another one passed in 1983 and applicable to Punjab and Chandigarh was withdrawn in 1997, roughly 14 years after it came to force.[3] An act passed in 1990 was applied to Jammu and Kashmir and has been in force since.[4]

The Acts have received criticism from several sections for alleged concerns about human rights violations in the regions of its enforcement alleged to have happened.[5][6]

Politicians like P. Chidambaram and Saifuddin Soz of Congress have advocated revocation of AFSPA, while some like Amarinder Singh are against its revocation.[7][8]

History

The Armed Forces Special Powers Ordinance of 1942[9] was promulgated by the British on 15 August 1942 to suppress the Quit India Movement.[10] Modeled on these lines, four ordinances—the Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the Assam Disturbed Areas (Special Powers of Armed Forces)Ordinance; the East Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the United provinces Disturbed Areas(Special Powers of Armed Forces) Ordinance were invoked by the central government to deal with the internal security situation in the country in 1947 which arouse out of the Partition of India.

Armed Forces Special Powers (Assam and Manipur) Act, 1958

In 1951, the Naga National Council(NNC) reported that it conducted a "free and fair plebiscite" in which about 99 percent of Nagas voted for a ‘Free Sovereign Naga Nation’.[11] There was a boycott of the first general election of 1952 which later extended to a boycott of government schools and officials.[12] In order to deal with the situation, the Assam government imposed the Assam Maintenance of Public Order (Autonomous District) Act in the Naga Hills in 1953 and intensified police action against the rebels. When the situation worsened, Assam deployed the Assam Rifles in the Naga Hills and enacted the Assam Disturbed Areas Act of 1955, providing a legal framework for the paramilitary forces and the armed state police to combat insurgency in the region. But the Assam Rifles and the state armed police could not contain the Naga rebellion and the rebel Naga Nationalist Council (NNC) formed a parallel government "The Federal Government of Nagaland" on 23 March 1956.[3] The Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 was promulgated by the President Dr. Rajendra Prasad on 22 May 1958. It was replaced by the Armed Forces (Assam and Manipur) Special Powers Act, 1958 on 11 September 1958.

The Armed Forces (Assam and Manipur) Special Powers Act, 1958 empowered only the Governors of the States and the Administrators of the Union Territories to declare areas in the concerned State or the Union Territory as 'disturbed'. The reason for conferring such a power as per "Objects and Reasons'" appended to the Bill was that "Keeping in view the duty of the Union under Article 355 of the Constitution, inter alia, to protect every State against internal disturbance, it is considered desirable that the Central government should also have power to declare areas as 'disturbed', to enable its armed forces to exercise the special powers".[13] The territorial scope of Act also expanded to the five states of the North-East - Assam, Manipur, Meghalaya, Nagaland, Tripura, Arunachal Pradesh and Mizoram. In addition, the words "The Armed Forces (Assam and Manipur) Special Powers Act, 1958" were substituted by "Armed Forces (Special Powers) Act, 1958", getting the acronym of AFSPA, 1958.

Recently the Tripura state government has decided to withdraw the controversial act, citing significant reduction in the extent of terrorist activities in the state.[14] In June 2015, after review, the AFSPA in Nagaland state was extended by one more year.[15]

In November 2016, Government of India has extended AFSPA in three districts of Arunachal Pradesh- Tirap, Changlang and Longding. These have been declared as “disturbed area” under Section 3 of the AFSPA. In these districts, Naga underground factions including National Socialist Council of Nagaland (Isak-Muivah) and NSCN (Khaplang) are involved in extortion, recruitment of locals, and rivalry.

The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983

The central government enacted the Armed Forces (Punjab and Chandigarh) Special Powers Act on 6 October 1983, repealing The Armed Forces (Punjab and Chandigarh) Special Powers Ordinance, 1983, to enable the central armed forces to operate in the state of Punjab and the union territory of Chandigarh. The Act was enforced in the whole of Punjab and Chandigarh on 15 October 1983. The terms of the Act broadly remained the same as that of the Armed Forces Special Powers Act (Assam and Manipur) of 1972 except for two sections, which provided additional powers to the armed forces.

  1. Sub-section (e) was added to Section 4 stipulating that any vehicle can be stopped, searched and seized forcibly if it is suspected of carrying proclaimed offenders or ammunition.
  2. Section 5 was added to the Act specifying that a soldier has the power to break open any locks "if the key there of is withheld".[3]

The Act was withdrawn in 1997, roughly 14 years after it came to force.

The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990

The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 was enacted in September, 1990.[4][16]

If the Governor of Jammu and Kashmir or the Central Government, is of opinion that the whole or any part of the State is in such a disturbed and dangerous condition then this act can be imposed.

The Act

The Articles in the Constitution of India empower state governments to declare a state of emergency due to one or more of the following reasons:

In such cases, it is the prerogative of the state government to call for central help. In most cases, for example during elections, when the local police may be stretched too thin to simultaneously handle day-to-day tasks, the central government obliges by sending in the BSF and the CRPF. Such cases do not come under the purview of AFSPA. AFSPA is confined to be enacted only when a state, or part of it, is declared a 'disturbed area'. Continued unrest, like in the cases of militancy and insurgency, and especially when borders are threatened, are situations where AFSPA is resorted to.[17]

By Act 7 of 1972, the power to declare areas as being disturbed was extended to the central government.[18]

In a civilian setting, soldiers have no legal tender, and are still bound to the same command chain as they would be in a war theater. Neither the soldiers nor their superiors have any training in civilian law or policing procedures. This is where and why the AFSPA comes to bear - to legitimize the presence and acts of armed forces in emergency situations which have been deemed war-like.[17][19]

According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as "disturbed", an officer of the armed forces has powers to:[20]


On July 8, 2016, in a landmark ruling, The Supreme Court of India ended the immunity of the armed forces from prosecution under AFSPA, saying, in an 85 page judgment, “It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both... This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties.” [21][22][23]

Non-state views and commentary:-

United Nations view

When India presented its second periodic report to the United Nations Human Rights Committee in 1991, members of the UNHRC asked numerous questions about the validity of the AFSPA. They questioned the constitutionality of the AFSPA under Indian law and asked how it could be justified in light of Article 4 of the International Covenant on Civil and Political Rights, ICCPR. On 23 March 2009, UN Commissioner for Human Rights Navanethem Pillay asked India to repeal the AFSPA. She termed the law as "dated and colonial-era law that breach contemporary international human rights standards."[24]

On 31 March 2012, the UN asked India to revoke AFSPA saying it had no place in Indian democracy. Christof Heyns, UN's Special Rapporteur on extrajudicial, summary or arbitrary executions said "During my visit to Kashmir, AFSPA was described to me as 'hated' and 'draconian'. It clearly violates International Law. A number of UN treaty bodies have pronounced it to be in violation of International Law as well."[25]

Non-governmental organizations' analysis

The act has been criticized by Human Rights Watch as a "tool of state abuse, oppression and discrimination".[26]

The South Asian Human Rights Documentation Centre argues that the governments' call for increased force is part of the problem.[27]

"This reasoning exemplifies the vicious cycle which has been instituted in the North East due to the AFSPA. The use of the AFSPA pushes the demand for more autonomy, giving the people of the North East more reason to want to secede from a state which enacts such powers and the agitation which ensues continues to justify the use of the AFSPA from the point of view of the Indian Government." - The South Asian Human Rights Documentation Centre[28]

A report by the Institute for Defense Studies and Analysis points to multiple occurrences of violence by security forces against civilians in Manipur since the passage of the Act.[29] The report states that residents believe that the provision for immunity of security forces urge them to act more brutally.[30] The article, however, goes on to say that repeal or withering away of the act will encourage insurgency. Irom Chanu Sharmila also known as the "Iron Lady of Manipur" or "Mengoubi" ("the fair one")[1] is a civil rights activist, political activist, and poet from the Indian state of Manipur. On 2 November 2000,[2] she began a hunger strike which ended on 9 August 2016 after 16 years. On 2 November 2000, in Malom, a town in the Imphal Valley of Manipur, ten civilians were shot and killed while waiting at a bus stop. The incident, known as the "Malom Massacre",was allegedly committed by the Assam Rifles, one of the Indian Paramilitary forces operating in the state.

[31] In addition to this, there have been claims of disappearances by the police or the army in Kashmir by several human rights organizations.[32][33]

A soldier guards the roadside checkpoint outside Srinagar International Airport in January 2009.

Many human rights organizations such as Amnesty International and the Human Rights Watch (HRW) have condemned human rights abuses in Kashmir by police such as "extra-judicial executions", "disappearances", and torture;[34] the "Armed Forces Special Powers Act", which "provides impunity for human rights abuses and fuels cycles of violence. The Armed Forces Special Powers Act (AFSPA) grants the military wide powers of arrest, the right to shoot to kill, and to occupy or destroy property in counterinsurgency operations. Indian officials claim that troops need such powers because the army is only deployed when national security is at serious risk from armed combatants. Such circumstances, they say, call for extraordinary measures." Human rights organizations have also asked Indian government to repeal[35] the Public Safety Act, since "a detainee may be held in administrative detention for a maximum of two years without a court order.".[36]

Activists who are working in J&K for peace and human rights include names of Madhu Kishwar, Ashima Kaul, Ram Jethmalani, Faisal Khan, Ravi Nitesh, Swami Agnivesh, Dr. Sandeep Pandey and many others. They all accept that people to people communication and development of new avenues are the only way for peace, however laws like AFSPA are continuously violating human rights issues there."What [the Indian State] has failed to see is that such small, ethnic groups are resisting the Indian state for 55 years" says legal activist and scholar, Babloo Loitongbom[37]

United States leaked diplomatic cables

The Wikileaks diplomatic cables have recently disclosed that Indian government employees agree to acts of human rights violations on part of the Indian armed forces and various paramilitary forces deployed in the north east parts of India especially Manipur. The violations have been carried out under the cover of this very act. Governor S.S. Sidhu admitted to the American Consul General in Kolkata, Henry Jardine, that the Assam Rifles in particular are perpetrators of violations in Manipur which the very same cables described as a state that appeared more of a colony and less of an Indian state.[38][39] However, Indian general election, 2014 recorded nearly 80% voters turnout in Manipur.[40]

Earlier leaks had also stated that International Committee of the Red Cross (ICRC) had reported to the United States diplomats in Delhi about the "grave human rights situation" in Kashmir which included "the use of electrocution, beatings and sexual humiliation against hundreds of detainees". This act is in force in Kashmir since 1990.[41]

Santosh Hegde commission on Manipur encounter deaths

A high-power commission headed by the retired Supreme Court judge, N. Santosh Hegde was constituted in January 2013 to probe six encounter deaths in Manipur.[42] The committee, comprising former Supreme Court judge Santosh Hegde, ex-CEC J M Lyngdoh and a senior police officer, has said in its report that the probe showed that none of the victims had any criminal records.[43] The judicial commission set up by the Supreme Court is trying to make the controversial Armed Forces Special Powers Act (AFSPA) more humane, and the security forces more accountable. The committee has suggested fixing a time frame of three months for the central government to decide whether to prosecute security personnel engaged in extrajudicial killings or unruly behaviour in insurgency-hit regions. The Commission noted that AFSPA was an impediment to achieving peace in regions such as Jammu and Kashmir and the northeast.The commission also said the law needs to be reviewed every six months to see whether its implementation is actually necessary in states where it is being enforced. About Section 6 of the act, which guarantees protection against prosecution to the armed forces, the report said: "It is not that no action can be taken at all. Action can be taken but with prior sanction of the central government.[44]

Justice Jeevan Reddy Commission

The commission recommended to repeal AFSPA as “the Act is a symbol of hate, oppression and instrument of high handedness” but Government of India has not taken any decision in this direction.

Second Administrative Reforms Commission

The second Administrative Reforms Commission (ARC) in its fifth report on “Public Order,” recommended to repeal of Armed Forces Special Powers Act, 1958. It commented that its scrapping would remove sentiments of discrimination and alienation among the people of the northeast India.The commission recommended to amend the Unlawful Activities (Prevention) Act, 1967 inserting a new chapter to deploy the armed forces of the Union in the North eastern States. It supported a new doctrine of policing and criminal justice inherent in an inclusive approach to governance.

Supreme Court of India

Supreme Court said that any encounter carried out by armed forces in the garb of AFSPA should be subjected to thorough inquiry. In the words of supreme court “It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state.The law is the same for both and is equally applicable to both... This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties."

See also

Footnotes

  1. ↑ Krishna Pokharel for the Wall Street Journal. Jan 7, 2015. Indian Activist Presses 14-Year Hunger Strike to Protest Abuses; Court Postpones Decision Whether Irom Sharmila Chanu Should Be Charged Again
  2. ↑ "THE ARMED FORCES (SPECIAL POWERS) ACT, 1858"
  3. 1 2 3 Chadha, Vivek (January 2013). Armed Forces Special Powers Act : the debate (PDF). ISBN 9788170951292. Retrieved 29 July 2013.
  4. 1 2 Muzamil Jaleel for the Indian Express. March 30, 2015. Explained: AFSPA-Disturbed Areas debate in J&K
  5. ↑ Joshi, Sandeep (17 July 2013). "Court-appointed panel highlights misuse of AFSPA in Manipur". The Hindu. Chennai, India. Archived from the original on 21 July 2013. Retrieved 29 July 2013.
  6. ↑ Jeelani, Mehboob (2015-07-02). "Amnesty slams India on AFSPA; wants spl. rapporteur for probe on disappearances". thehindu.com. The Hindu. Retrieved 8 July 2015.
  7. ↑ "After P Chidambaram, Congress leader Saifuddin Soz calls for revocation of AFSPA in Jammu-Kashmir". dna. Retrieved 16 March 2015.
  8. ↑ "Congress divided over AFSPA, Amarinder Singh against repealing of the Act". IBNLive. Retrieved 16 March 2015.
  9. ↑ "(THE) ARMED FORCES (SPECIAL POWERS) ORDINANCE, 1942". Retrieved 29 July 2013.
  10. ↑ "A VICIOUS CYCLE OF VIOLENCE". The Telegraph. Calcutta, India. 26 April 2005. Retrieved 29 July 2013.
  11. ↑ Singh M. Amarjeet. "The Naga Conflict. NIAS Backgrounder on Conflict Resolution, B7-2012" (PDF). National Institute of Advanced Studies, Bangalore. Retrieved 29 July 2013.
  12. ↑ Nandini Sundar (5 February 2011). "Interning Insurgent Populations: The Buried Histories of Indian Democracy". Economic and Political Weekly. Archived from the original on 2013-11-05. Retrieved 29 April 2014.
  13. ↑ "Report of the Committee, headed by Justice Jeevan Reddy, to Review the Armed Forces (Special Powers) Act 1958 - Part II - Legal and Constitutional Aspects" (PDF). The Hindu. Chennai, India. Retrieved 29 July 2013.
  14. ↑ "AFSPA removed in tripura after 18 years". New Delhi. firstpost.com. Retrieved July 11, 2015.
  15. ↑ "Centre extends AFSPA in Nagaland". DHNS. New Delhi. Deccan Herald. July 8, 2015. Retrieved July 11, 2015.
  16. ↑ The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990" Indian Ministry of Law and Justice Published by the Authority of New Deli
  17. 1 2 Harinder Singh (6 July 2010). "AFSPA: A Soldier's Perspective". Institute for Defence Studies and Analyses.
  18. ↑ "Report of the Committee, headed by Justice (Retd) B.P. Jeevan Reddy, to Review the Armed Forces (Special Powers) Act 1958 -Part-II Legal and Constitutional aspects" (PDF). The Hindu. Chennai, India. Retrieved 28 July 2013.
  19. ↑ Anil Kamboj (October 2004). "Manipur and Armed Forces (Special Power) Act 1958". Institute for Defence Studies and Analyses.
  20. ↑ "(PDF) The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990" Indian Ministry of Law and Justice Published by the Authority of New Deli
  21. ↑ http://www.thehindu.com/news/national/security-forces-cannot-use-excessive-force-in-afspa-areas-supreme-court/article8823407.ece
  22. ↑ http://www.thehindu.com/opinion/editorial/editorial-on-supreme-court-order-on-afspa-ending-impunity-under-afspa/article8831739.ece
  23. ↑ http://www.countercurrents.org/2016/07/09/the-supreme-court-speaks-ending-impunity-for-the-armed-forces/
  24. ↑ "United Nations asks Indian govt to repeal AFSPA". IRNA. 23 March 2009. Retrieved 2009-03-24.
  25. ↑ "UN asks India to repeal Armed Forces Special Powers Act". NDTV.com. Retrieved 16 March 2015.
  26. ↑ "Crisis in Kashmir" Council on Foreign Relations
  27. ↑ "India: Repeal Armed Forces Special Powers Act - Human Rights Watch". Retrieved 16 March 2015.
  28. ↑ AFSPA South Asian HRDC
  29. ↑ Institute for Defense Studies and Analysis, 'Manipur and Armed Forces (Special Powers) Act 1958' "the alleged rape and killing of Manjab Manorama", "security forces have destroyed homes", "arrests without warrants", "widespread violations of humane rights", "The cases of Naga boys of Oinam village being tortured before their mothers by Assam rifles Jawans in July 1987; the killing of Amine Devi and her child of Bishnupur district on April 5, 1996 by a CRPF party; the abduction, torture and killing of 15-year-old Sanamacha of Angtha village by an Assam Rifles party on 12th February 1998; the shooting dead of 10 civilians by an Assam Rifles party in November 2000 are some of the glaring examples that are still fresh in the mind of Manipuris."
  30. ↑ Institute for Defense Studies and Analysis, 'Manipur and Armed Forces (Special Powers) Act 1958'
  31. ↑ "Blood Tide Rising". TIME Magazine. 18 January 1993.
  32. ↑ "India". U.S. Department of State. Retrieved 16 March 2015.
  33. ↑ "BBC NEWS - South Asia - Kashmir's extra-judicial killings". Retrieved 16 March 2015.
  34. ↑ "Behind the Kashmir Conflict - Abuses in the Kashmir Valley (Human Rights Watch Report, July 1999)". Retrieved 16 March 2015.
  35. ↑ "India: Repeal the Armed Forces Special Powers Act - Human Rights Watch". Retrieved 16 March 2015.
  36. ↑ "Behind the Kashmir Conflict - Undermining the Judiciary (Human Rights Watch Report, July 1999)". Retrieved 16 March 2015.
  37. ↑ ""If you go hunting, be ready to meet the tiger" – Human rights activist and scholar, BablooLoitongbam". BarandBench. Retrieved 20 May 2014.
  38. ↑ Nambath, Suresh (21 March 2011). "'Manipur more a colony of India'". The Hindu. Chennai, India.
  39. ↑ "76968: Manipur experiences escalating violence". The Hindu. Chennai, India. 21 March 2011.
  40. ↑ "State-Wise Voter Turnout in General Election 2014". Election Commission of India. Government of India. Press Information Bureau. 21 May 2014. Retrieved 7 April 2015.
  41. ↑ Burke, Jason (16 December 2010). "WikiLeaks cables: India accused of systematic use of torture in Kashmir". The Guardian. London.
  42. ↑ "Santosh Hegde panel to probe Manipur encounter deaths". Chennai, India. Archived from the original on 9 November 2013. Retrieved 29 April 2014.
  43. ↑ "Manipur encounter killings fake, SC probe panel says - The Times of India". The Times Of India. 4 April 2013.
  44. ↑ http://www.dnaindia.com/india/1863920/report-sc-panel-pushes-for-a-humane-afspa

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